Citation Nr: 0024352
Decision Date: 09/13/00 Archive Date: 09/21/00
DOCKET NO. 96-23 726 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to an increased rating for a left ankle
disorder, currently rated as 10 percent disabling.
2. Entitlement to an increased (compensable) rating for left
ear hearing loss.
3. Entitlement to service connection for a right ankle
disorder.
4. Entitlement to service connection for right ear hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. L. Tiedeman, Associate Counsel
INTRODUCTION
The appellant had active service in the Army from November
1977 to December 1983. This matter originally came before
the Board of Veterans' Appeals (the Board) on appeal from a
December 1995 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
That rating decision, in part, granted service connection for
a left ankle disorder and assigned a 10 percent disability
rating. That rating decision also granted service connection
for left ear hearing loss at a noncompensable (0%) disability
level, and denied service connection for a right ankle
disorder and for right ear hearing loss. The case was
certified to the Board by the Jackson RO after the
appellant's case was transferred there subsequent to his move
to Mississippi in 1996. This case was last remanded by the
Board in June 1999 to ensure compliance with due process
requirements.
As to the increased rating issues, as the grant of service
connection is from the original claim, the holding of the
United States Court of Appeals for Veterans Claims (formerly
the United States Court of Veterans Appeals) (Court) in
Fenderson v. West, 12 Vet. App. 119 (1999), is for
application.
REMAND
The June 1999 Board remand requested that the RO schedule the
appellant for a Travel Board hearing in accordance with
applicable procedures pursuant to 38 C.F.R. § 20.704.
However, by letter dated in September 1999, the VA notified
the appellant that he had been scheduled for a hearing at the
Jackson RO before a Member of the Board on October 28, 1999
at 9:00 a.m., via a videoconference hearing. The RO informed
the appellant that he was not required to accept the
videoconference hearing and enclosed a form upon which the
appellant was to indicate his intent to attend the scheduled
videoconference hearing and waive his right to any other
hearing before the Board.
The letter also informed the appellant that if the RO did not
receive a response from the appellant, the videoconference
hearing would be canceled and the RO would keep him on the
hearing schedule for a future visit by a Board Member. A
review of the claims file reflects no response to the RO's
letter or any indication of the appellant's intent to appear
for a videoconference hearing and waive his right to an 'in-
person' Travel Board hearing. It does not appear, however,
that the appellant has been scheduled yet for such an 'in-
person' Travel Board hearing. It does seem clear, however,
that the appellant does not want a video-conference hearing.
This is the fourth remand by the Board in an attempt to
schedule this veteran for a hearing. A hearing on appeal
must be granted when, as in this case, an appellant expresses
a desire for a hearing. 38 C.F.R. § 20.700(a). A hearing is
not, however, required. As the record does not reflect that
the appellant's intends to accept the videoconference hearing
in lieu of an 'in-person' hearing, the case is remanded again
for the following:
The RO should schedule the
appellant for an 'in-person'
Travel Board hearing in
accordance with applicable
procedures pursuant to
38 C.F.R. § 20.704. He
should not be scheduled for
any video-conference hearing
unless he specifically, and
in writing, requests such
hearing. If the appellant
desires to withdraw his
hearing request, prior to the
conduct of the hearing, he
should do so in writing at
the RO.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
Thereafter, the case should be returned to the Board in
accordance with applicable procedures.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).